Hier stehe ich, ich kann nicht anders. Gott helfe mir. Amen.
That’s Martin Luther, who’d had it up to here with the Church, defaced its doors, and been declared a heretic, excommunicated, and declared an outlaw.
Here I stand. I can do no other. God help me. Amen.
Martin Luther had a choice, with two options:
- Act in accordance with his principles.
- Remain a member of church and under the protection of the state.
Kim Davis, the Rowan County Clerk jailed for contempt of court in Kentucky, also has a choice, but she has three options:
- Act in accordance with her principles.
- Keep getting paid at her government job.
- Stay out of jail.
Davis cannot do all three. There is nothing in the Bible, the Constitution, or the Uniform Commercial Code1 that says she gets to have it all. But she does get to pick any two.
- If Davis keeps her government job and continues refusing to issue marriage licenses2 — the job that she is getting paid for and that a U.S. District Judge has ordered her to do — she stays in jail.
- If Davis gives up her government paycheck, she can refuse to participate in gay marriage and get out of jail.
- If Davis sacrifices her principles at the office, and issues marriage licenses to all comers, she gets paid and gets out of jail.
I wouldn’t criticize any of these choices. How Davis values these three goods — principle, money, and freedom — is a personal matter. I wouldn’t judge her for making accommodations at work to stay out of jail. I wouldn’t judge her for giving up a paycheck to live her principles. And I don’t judge her for giving up her freedom to live her principles and get a paycheck.
But while the calculus that led Davis to choose jail over freedom is a personal matter, neither these variables3 nor the result are private matters. We know the options that she had, and we know her choice.
A digression that may well end up devouring this post:
Davis’s lawyer now says, discussing marriage licenses issued to same-sex couples today:
… that they are “void,” because they did not come under Davis’ authority.
“They are not worth the paper that they are written on,” Staver said.
Exploring that idea, he said the county clerk has the authority to distribute marriage licenses — and Davis hasn’t ceded that authority to her deputies who issued licenses Friday.
Lest you think — as Davis’s lawyer seems to think — that Davis can gum up the sodomy works by remaining in jail so that marriage licenses can’t be issued: under Kentucky law, a county judge executive can issue licenses when the county clerk is absent.
The lawyer’s statements today might suggest that Davis seeks to stop gay people from getting licensed, but that appears to be his agenda rather than his client’s. Davis’s pre-incarceration arguments suggest that she is interested only in avoiding participation herself: she argued that her religious scruples rendered her “absent” so that the county judge executive could issue marriage licenses in her county. The judge rejected that argument.
Well, she’s certainly absent (“not present at a place, job, etc.,” according to the dictionary definition the U.S. District Judge quoted) now, so the county judge executive can issue licenses in her county. Can he delegate that duty to Davis’s deputies? Mere details.
We see three variables to Davis’s decision, and we see the decision. Rationally, she should choose the combination of two options with the highest value to her.
People have been known to swap freedom, money, and principle for each other. Just taking a job is giving up a bit of freedom for money. I make a living because people give up money for a bit of freedom.
We can infer from Davis’s choice that at the moment she values principle over freedom. P>F. We can also infer that at the moment she values her sweet government job over freedom. J>F. If her freedom were more valuable to her than her job, she could resign (or take a leave of absence) and be out of jail Tuesday.4
So we know that Davis values principle over freedom, which might make her hero material if we didn’t know something else about her, which is that she also values her government job over freedom. We don’t know whether there is a price at which Kim Davis would sell her principles, but we know that she has sold her freedom cheaply.
If valuing principle over freedom makes you a hero, valuing a government paycheck over freedom makes you just another greedy bureaucrat.
Davis is refusing to issue any marriage licenses; she argued that her refusal to issue licenses caused only an incidental burden on the (gay and straight) plaintiffs’ right to marry because they could go to one of the surrounding counties for a license ↩
There may be other factors of which we are not aware — for example, someone may be promising her some benefit for staying in jail, or threatening some detriment for not doing so. But these are just parts of the three major variables: P, J, and F. ↩
The injunction was against Davis in her official capacity; when she is no longer the Rowan County Clerk, the injunction no longer applies to her. ↩